On Petition To Transfer from the Indiana Court of Appeals, No. 46A04-0306-PC-295
_________________________________

May 31, 2005

Sullivan, Justice

The Court of Appeals held that Lawrence Thomas had been the victim of
ineffective assistance of trial counsel and was entitled to have his conviction for
Murder set aside. The basis for this conclusion was that his lawyer
had not objected when the trial court did not instruct the jury on
the specific elements of the crime of dealing in cocaine, the felony underlying
the States Felony Murder charge. However, Thomas was not harmed by this
omission because he was properly charged with, and the jury properly instructed on,
the charge of Knowing or Intentional Murder.

Background

A decade ago, petitioner Lawrence Thomas was convicted of Murder. He appealed
that conviction but the Court of Appeals affirmed in an unpublished opinion.
Thomas v. State, 659 N.E.2d 266 (Ind. Ct. App. 1995) (mem.). Utilizing
the post-conviction relief rules adopted by this Court that permit persons to challenge
their convictions and sentences even after they have been affirmed on appeal, Thomas
sought to have his conviction set aside. The post-conviction court denied his
request; its decision was reversed by the Court of Appeals. Thomas v.
State, 803 N.E.2d 1218 (Ind. Ct. App. 2004). We granted the State's
petition to transfer, Thomas v. State, 812 N.E.2d 806, (Ind. 2004) (mem), and
now affirm the decision of the post-conviction court.

Discussion

Under Indiana law, a person can be guilty of the crime of Murder
in several ways. One such way is by knowingly or intentionally killing
another human being. A second is by killing another human being while
committing or attempting to commit certain felonies such as arson, burglary, or dealing
in cocaine. The first of these two ways is often referred to
as the crime of Knowing or Intentional Murder, and is established by Indiana
Code § 35-42-1-1(1); the second as Felony Murder, established by Indiana Code §
35-42-1-1(3). The difference between what the State must prove to obtain a
conviction for each of these two types of murder is that, for Knowing
or Intentional Murder, the State must prove that the killing was committed knowingly
or intentionally; for Felony Murder, the State need not prove that the defendant
acted with any particular mental statethe killing could be totally accidentalso long as
the State does prove that the killing occurred while the defendant was committing
(or attempting to commit) a specified felony.

In the case before us, it appears that there was a fair amount
of imprecision at trial over whether Thomas was being tried for Knowing or
Intentional Murder or for Felony Murder. In this collateral attack on his
conviction, Thomas essentially contends that he was denied his Sixth Amendment right to
the effective assistance of trial and appellate counsel because his counsel did not
rectify the imprecision.

We find it unnecessary to set forth the underlying facts of the crime
of which Thomas was convicted. The interested reader is referred to the
opinion of the Court of Appeals in this regard. Thomas, 803 N.E.2d
at 1220-21. It is enough for our purposes to say that the
charging information in this case alleged that Thomas was guilty of Felony Murder
because he had knowingly or intentionally kill[ed] another human being, namely Sheldon Byrd
while dealing in cocaine or a narcotic drug (Ind. Code 35-48-4-1). . .
. Tr. at 79.

The imprecision in the charging instrument should be apparent. While it alleges
that Thomas was guilty of Felony Murder, it sets forth all of the
elements necessary to convict a person of Knowing or Intentional Murder, in addition
to including a felony that would support a conviction for fFelony mMurder.
Put differently, while proving either the elements of Felony Murder alone or the
elements of Knowing or Intentional Murder alone would be enough to convict him
of the crime of Murder, by charging Thomas in this way, the State
took upon itself not just the burden ofsuggested that it would attempt to
proving prove him guilty both of Felony Murder but and also of Knowing
or Intentional Murder. See State v. Griffin, 717 N.E.2d 73, 85 (Ind.
1999) (noting thatwhere a Felony Murder jury instruction that misstates misstated the law
by adding language requiring specific culpability obligates the State to prove not only
that the defendant participated in the underlying felony, but also that defendants participation
in the killing was knowing or intentional).

This imprecision carried through to the instructions given to the jury at Thomass
trial. It was given both a preliminary and a final instruction that
read as follows:

The statute defining the offense of Murder, which was in force at the
time of the offense charged reads (in part) as follows:

35-42-1-1(3)

A person who: knowingly or intentionally kills another human being; while committing or
attempting to commit: (A) dealing in cocaine or a narcotic drug (Ind. Code
35-48-4-1), commits murder, a felony.

Tr. at 27.

The jury returned a verdict of guilty and the trial court sentenced Thomas
to 40 years in prison, the standard sentence for Murder at the time.
Thomas, 803 N.E.2d at 1221. Neither the jurys verdict nor the
trial courts judgment of conviction or sentencing order distinguished between Knowing or Intentional
Murder and Felony Murder.

In its opinion, the Court of Appeals resolved this ambiguity by concluding that
Thomas was charged and convicted of Felony Murder. Thomas, 803 N.E.2d at
1221. Our reading of the record, however, compels us to conclude otherwise.
While the jury verdict, court judgment, and sentencing order were silent as
to whether Thomas was convicted of Knowing or Intentional Murder or Felony Murder,
both the charging information and jury instructions contain each of the elements of
Knowing or Intentional Murder. We therefore conclude in light of the jurys
unanimous verdict, that the State met its burden of proof on the charge
of Knowing or Intentional Murder. Our discussion and analysis continues with this
finding in mind.

I

In seeking post-conviction relief from his Murder conviction, Thomas contends that his lawyer
should have done two things at trial: first, that he should have
challenged the jury instruction on grounds that it did not set forth the
specific elements of the crime of dealing in cocaine; and second, that he
should have challenged the jury verdict on grounds that it did not specify
whether it had found him guilty of Knowing or Intentional Murder or of
Felony Murder. Thomas also contends that his lawyer on direct appeal should
have challenged as fundamental error entitling him to reversal of his conviction both
the trial court judges failure to set forth the specific elements of the
crime of dealing in cocaine and the trial court judges failure to determine
whether the jury had found him guilty of Knowing or Intentional Murder or
of Felony Murder.
See footnote

While it is bedrock law that a defendant in a criminal case is
entitled to have the jury i
nstructed on all of the elements of the
charged offense, In re Winship, 397 U.S. 358, 373-74 (1970), we perceive no
harm to Thomas from the fact that his jury was not instructed on
all of the elements of the offense of dealing in cocaine. This
is because the jury was instructed on all of the elements of the
offense of Knowing or Intentional Murder, with respect to which the reference to
dealing in cocaine was mere surplusage. When the jury found him guilty
of Knowing or Intentional Murder, that is to say, that the State had
met its burden of proof on each and every element of the offense
of Knowing or Intentional Murder, it simply did not matter how completely the
jury was instructed on the offense of dealing in cocaine
An individuals Sixth Amendment right to the effective assistance of counsel is not
violated unless there is prejudice from counsels deficient performance. Strickland v. Washington,
466 U.S. 668, 691 (1984). Given that the omission of the elements
of dealing in cocaine from the jury instruction was totally harmless, trial counsels
failure to seek an instruction on the elements of dealing in cocaine and
appellate counsels failure to claim that the trial judges failure to give such
an instruction constituted fundamental error did not constitute ineffective assistance of counsel.
See Neder v. United States, 527 U.S. 1, 10 (1999) (holding that the
omission of an element is subject to harmless-error analysis).

It is important to note that part of the reason why there is
no harm here from the failure to instruct on the specific elements of
dealing in cocaine is that, even though the charging instrument may have referred
to the offense as Felony Murder, Thomas was in fact charged with all
of the elements of Knowing and Intentional Murder and each of those elements
was contained in the jury charge as well. It would have been
a different case entirely if Thomas had been charged with only the elements
of Felony Murder; in that circumstance, it would have been necessary to provide
the jury with the specific elements of the underlying felony.

II

As to Thomass claim that counsel was ineffective for failing to challenge the
form of verdict for failing to specify whether the jury had found him
guilty of Knowing or Intentional Murder or of Felony Murder, we again find
any error to have been totally harmless. The jury was instructed in
such a way that it could not have returned a verdict of guilty
without finding that the State had met its burden of proof on all
of the elements of Knowing or Intentional Murder. The trial court imposed
the standard sentence for Murder; no additional time was imposed for dealing cocaine.
In this respect, the case differs from Hobson v. State, 675 N.E.2d
1090 (Ind. 1996), cited by Thomas. In Hobson, the trial court instructed
the jury that it could return a verdict of guilty on the charge
of Murder under either a Knowing or Intentional Murder or a Felony Murder
theory. The court then gave to the jury a general murder verdict form.
Because Knowing or Intentional Murder has elements different from Felony Murder, and because
it was unclear of which crime the jury found him guilty, we found
his conviction defective. Id. at 1094-1095. Cf. Schad v. Arizona, 501
U.S. 624, 641 (1991) (holding neither the Sixth, Eighth, nor Fourteenth Amendments prohibited
conviction where the trial court had instructed the jury that it could return
a verdict of guilty on the charge of murder under either a premeditated
murder or a felony murder theory).

III

Since any errors with respect to the failure of the jury instructions to
set forth the elements of dealing in cocaine or the failure of the
verdict form to distinguish between Knowing or Intentional Murder and Felony Murder were
harmless, Thomas was not deprived of his right to effective assistance of appellate
counsel when his lawyer did not raise these issues on direct appeal.

Conclusion

Having previously granted transfer, we summarily affirm the opinion of the Court of
Appeals as to the issue discussed in footnote 1 and affirm the judgment
of the post-conviction court.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

Footnote: As the Court of Appeals pointed out, Thomass claims of error on
the part of the trial court judge (as opposed to his claims that
trial and appellate counsel were ineffective for failing to challenge the alleged errors)
were available on direct appeal and so cannot be raised in this proceeding.
Thomas, 803 N.E.2d at 1219 n.1. We summarily affirm the Court
of Appeals on this point. Ind. Appellate Rule 58(A)(2).